Sen. McCaskill Doesn’t Say Where Congress Gets Power To Mandate Health Insurance, But Cites Auto Insurance At State Level

(CNSNews.com) -- Senator Claire McCaskill (D-Mo.) did not say where Congress gets the constitutional authority to require that every American buy health insurance, as both the Senate and House health care bills mandate. However, McCaskill said that government has “gotten involved” with health care in many ways and, if there is a constitutional issue with the new mandate, the Supreme Court “will weigh in.”

The individual health insurance mandate in the Senate health reform bill would force all Americans to carry some form of government-approved health insurance or pay an excise tax penalty ranging between $500 and $1,500 per year.

At the U.S. Capitol on Tuesday, Dec. 22, CNSNews.com asked Sen. McCaskill (D-Mo.), “Specifically where in the Constitution does Congress get the authority to mandate that individuals buy health insurance?”

McCaskill said: “Well the -- we have all kinds of places where the government has gotten involved with health care and mandating insurance. In most states, the government mandates the buying of car insurance, and I can assure everyone that if anything in this bill is unconstitutional, the Supreme Court will weigh in.”

The legislation passed on a party-line vote, 60 – 39, on Dec. 24, Christmas Eve. (Sen. Jim Bunning [R-Ky.] skipped the vote, while the two Independents – Sen. Bernie Sanders of Vermont and Sen. Joe Lieberman of Connecticut – joined with the 58 Democrats to pass the bill.)

Back in 1994, the Congressional Budget Office (CBO) examined the individual health insurance mandate, which was then being proposed by President Bill Clinton’s health care reform effort, and described the idea as an “unprecedented form of federal action.”

“The government has never required people to buy any good or service as a condition of lawful residence in the United States,” the CBO analysis said. “An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”

Because Congress has never before required Americans to purchase anything, an individual mandate is without constitutional precedent and would therefore require the Supreme Court to invent en entirely new constitutional doctrine, according to conservative scholars at the Heritage Foundation.

“Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service,” wrote Heritage scholars Randy Barnett, Nathaniel Stewart, and Todd F. Gaziano.

“Therefore, because this claim of power by Congress would literally be without precedent,” they wrote, “it could only be upheld if the Supreme Court is willing to create a new constitutional doctrine.”

Sens. John Ensign (R-Nev.) and Jim DeMint (R-S.C.) think the provision falls outside the constitutional purview of the Congress. In a floor speech on Dec. 22, DeMint said the provision was nothing like state-mandated auto insurance.

“Forcing every American to purchase a product is absolutely inconsistent with our Constitution and the freedoms our Founding Fathers hoped to protect,” he said. “This is not at all like car insurance. You can choose not to drive but Americans will have no choice whether to buy government-approved insurance.”

“This is nothing more than a bailout and takeover of insurance companies,” said DeMint. “We’re forcing Americans to buy insurance under penalty of law and then Washington bureaucrats will then dictate what these companies can sell to Americans.”

“This is not liberty,” he said. “It is tyranny of good intentions by elites in Washington who think they can plan our lives better than we can.”

On Tuesday, Dec. 22, Sens. John Ensign (R-Nev.) and Jim DeMint (R-S.C.) raised, on behalf of the Republican Steering Committee,
a point of order questioning the constitutionality of the individual mandate.

While the GOP wanted to examine the constitutionality of the mandate, the point of order was dismissed on Wednesday afternoon, Dec, 23, in a roll call vote that split along party lines, 60-39.

In a floor speech when he raised the point of order, Sen. Ensign said, “I am incredibly concerned that the Democrats’ proposed individual mandate provision takes away too much freedom and choice from Americans across the country.”

“As an American, I felt the obligation to stand up for the individual freedom of every citizen to make their own decision on this issue. I don’t believe Congress has the legal authority to force this mandate on its citizens.”

A transcript of the exchange between Sen. McCaskill (D-Mo.) and CNSNews.com follows below:

CNSNews.com: “Specifically where in the Constitution does Congress get the authority to mandate that individuals buy health insurance?”

Senator McCaskill: “Well the -- we have all kinds of places where the government has gotten involved with health care and mandating insurance. In most states, the government mandates the buying of car insurance, and I can assure everyone that if anything in this bill is unconstitutional, the Supreme Court will weigh in.”